Emerson v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-42V
(Not to be published)
*************************
JAMIE EMERSON, *
* Special Master Corcoran
Petitioner, *
* Dated: May 30, 2018
v. *
* Attorneys’ Fees and Costs;
* Interim Fees; Expert Costs.
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
*************************
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Adriana R. Teitel, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION GRANTING INTERIM AWARD OF ATTORNEYS’ FEES AND COSTS1
On January 15, 2015, Jamie Emerson filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”)2 alleging that she suffered
from uveitis and retinal migraines as a result of receiving the Hepatitis B (“Hep B”) vaccine on
July 19, 2012. I held an entitlement hearing on January 10, 2018, in Washington, DC, and the
parties are currently involved in settlement discussions.
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012)). This
means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will be available to the public.
Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
Petitioner has now requested an interim award of attorneys’ fees and costs in the total
amount of $61,727.18 (representing $45,039.45 in attorneys’ fees, plus $16,687.73 in costs). See
generally Petitioner’s Application for Interim Attorneys’ Fees and Costs, filed April 26, 2018
(ECF No. 57) (“Interim Fees App.”).
Respondent responded to the motion on May 9, 2018, deferring to my discretion as to
whether Petitioner has met the legal standards for an interim fees and costs award. ECF No. 58 at
2. Respondent otherwise represents that the statutory and other legal requirements for an award of
attorneys’ fees and costs are met, and he recommends that if an interim award is appropriate, I
calculate a reasonable award. Id. at 2-3.
For the reasons stated below, I hereby GRANT IN PART Petitioner’s Motion, awarding
at this time interim fees and costs in the total amount of $59,277.18.
PROCEDURAL HISTORY
This action has been pending for over three years. Pet. at 1, filed January 15, 2015 (ECF
No. 1). As the billing invoices submitted in support of the fees application reveal, Petitioner first
approached the law firm of Conway, Homer, P.C. about her case on November 11, 2014. See Ex.
A to Interim Fees App. (“Ex. A”) at 1. The case thereafter proceeded with Petitioner filing her
medical records and final statement of completion on June 15, 2015, and Respondent filing the
Rule 4(c) Report on August 14, 2015. ECF No. 14. On December 10, 2015, Petitioner filed an
Amended Petition. ECF No. 17.
After two additional extensions of time, Petitioner filed an expert report from Dr. Frederick
W. Fraunfelder on January 28, 2016 (ECF No. 20). Respondent thereafter filed an expert report
from Dr. Mitchell Fineman on September 9, 2016. ECF No. 27. Petitioner then filed a rebuttal
expert report from Dr. Fraunfelder on February 13, 2017 (ECF No. 32), and Respondent filed his
supplemental report from Dr. Fineman on May 10, 2017. (ECF No. 39). I subsequently set the
matter for an entitlement hearing to be held on January 10, 2018. ECF No. 41. The entitlement
hearing was held on the aforementioned date and a post-hearing briefing schedule was set on
January 10, 2018. Thereafter, the parties agreed to postpone the briefing schedule in order to
discuss the possibility of settlement, which is presently ongoing.
Petitioner filed the instant interim request for an award of attorneys’ fees and costs on April
26, 2018. See generally Interim Fees App. Petitioner’s fee application includes billing records that
indicate that the work performed in this case has been divided among several Conway, Homer,
P.C. attorneys – Mr. Pepper, Mr. Homer, Ms. Daniels, Ms. Ciampolillo, Ms. Faga, and Ms. Caplan
– along with firm paralegals and law clerks. Id. The application requests total compensation for
Conway, Homer, P.C. in the amount of $45,039.45, for work performed from November 11, 2014,
to April 20, 2018, at the following hourly rates:
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2014 2015 2016 2017 2018
Mr. Pepper $290.00 $290.00 $290.00 $297.00 $305.00
Mr. Homer - $400.00 $400.00 $409.00 $421.00
Ms. Daniels - $280.00 - $286.00 $294.00
Ms. Ciampolillo - - $300.00 - -
Ms Faga - - - $271.00 -
Ms. Caplan - $200.00 - - -
Paralegals $135.00 $135.00 $135.00 $138.00 $142.00
Law Clerks $145.00 $145.00 $145.00 $148.00 -
Id. Petitioner also seeks to recover $16,687.73 in costs, including document collection, lodging
and transportation to and from hearings, and expert cots for Dr. Fraunfelder at a rate of $500.00
per hour. Id.
ANALYSIS
I. Legal Standard Applicable to Interim Fees and Costs Requests
I have in prior decisions discussed at length the standards applicable to determining
whether to award fees on an interim basis (here meaning while the case is still pending). Auch v.
Sec'y of Health & Human Servs., No. 12-673V, 2016 WL 3944701, at *6-9 (Fed. Cl. Spec. Mstr.
May 20, 2016); Al-Uffi v. Sec'y of Health & Human Servs., No. 13-956V, 2015 WL 6181669, at
*5-9 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). It is well-established that a decision on entitlement is
not required before interim fees or costs may be awarded. Fester v. Sec’y of Health & Human
Servs., No. 10-243V, 2013 WL 5367670, at *8 (Fed. Cl. Spec. Mstr. Aug. 27, 2013); see also
Cloer v. Sec’y of Health and Human Servs., 675 F.3d 1358, 1362 (Fed. Cir. 2012); Avera, 515
F.3d at 1352. While there is no presumption of entitlement to interim fees and cost awards, special
masters may in their discretion make such awards, and often do so. Perreira v. Sec’y of Health &
Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Requests for interim
costs are subject to the same standards. Perreira, 27 Fed. Cl. at 34; Presault v. United States, 52
Fed. Cl. 667, 670 (2002); Fester, 2013 WL 5367670, at *16.
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I find that Petitioner has made a showing sufficient to justify an award of interim fees and
costs. Criteria that I have found to be important in determining whether an interim fees request
should be permitted include: 1) if the amount of fees requested exceeds $30,000; 2) where expert
costs are requested, if the aggregate amount is more than $15,000; or 3) if the case has been
pending for more than 18 months. See Knorr v. Sec’y of Health & Human Servs., No. 15-1169V,
2017 WL 2461375 (Fed. Cl. Spec. Mstr. Apr. 17, 2017). The facts relevant to this matter meet
these criteria: the case has been pending for over three years, the total amount of attorneys’ fees
requested exceeds the minimum threshold that I find to be appropriate, and it is likely Petitioner
will continue to incur additional attorneys’ fees and expert costs as this case proceeds.
II. Amounts Requested for Petitioner’s Attorneys
The attorneys from Conway Homer have repeatedly been found to be "in forum" and
therefore are entitled to the forum rates established in McCulloch. See McCulloch v. Sec'y of Health
& Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
This determination is consistent with my own decisions. See, e.g., Caruso v. Sec'y of Health &
Human Servs., No. 15-200V, 2017 WL 5381004 (Fed. Cl. Spec. Mstr. Sept. 26, 2017); Sharifipour
v. Sec'y of Health & Human Servs., No. 15-669, 2017 WL 2926617 (Fed. Cl. Spec. Mstr. June 6,
2017); Johnson v. Sec'y of Health & Human Servs., No. 14-113V, 2016 WL 5224405 (Fed. Cl.
Spec. Mstr. Aug. 19, 2016). Other special masters have awarded forum rates to these attorneys as
well. See, e.g., Cabrera v. Sec'y of Health & Human Servs., No. 13-598V, 2017 WL 656303, at *3
(Fed. Cl. Spec. Mstr. Jan. 23, 2017).
The hourly rates requested by Petitioner for the attorneys here are in line with what the
Conway Homer firm has asked for and been awarded in previous cases of mine. See Caruso, 2017
WL 5381004; Sharifipour, 2017 WL 2926617. Additionally, while Petitioner requests small rate
increases for 2018 from 2017, I find that these hourly rates are still in accordance with the Vaccine
Program forum-rate guidelines. See Barrett v. Sec'y of Health & Human Servs., No. 09-389, 2014
WL 2505689, at *8 (Fed. Cl. Spec. Mstr. May 13, 2014). Accordingly, no adjustments to the
requested rates are required.
I also find that the rates requested for the paralegals and law clerks to be reasonable. This
is consistent with my own decisions and in line with the rates established in McCulloch. See, e.g.,
Reese v. Sec’y of Health & Human Servs., No. 16-1117V, 2018 WL 2225591 (Fed. Cl. Spec. Mstr.
April 2, 2018); Stepp v. Sec’y of Health & Human Servs., No. 14-851V, 2018 WL 793426 (Fed.
Cl. Spec. Mstr. Jan. 2, 2018); Derenzo v. Sec’y of Health & Human Servs., No. 16-035V, 2018
WL 1125231 (Fed. Cl. Spec. Mstr. Jan. 9, 2018).
In addition, the hours expended on this matter (200.8 hours billed and counting) appear to
be reasonable for a case that has lasted over three years and has had an entitlement hearing. This
4
case has also proceeded in a timely fashion, and Petitioner’s attorneys efficiently used their time
to collect the necessary medical records and medical literature relevant to this case. I do not find
any particular billing entries to be objectionable, nor has Respondent identified any as such.
Therefore, the requested attorneys’ fees will be reimbursed in full, in the amount of $45,039.45.
III. Requested Costs
Just as they are required to establish the reasonableness of requested fees, petitioners must
also demonstrate that requested litigation costs are reasonable. Perreira, 27 Fed. Cl. at 34;
Presault, 52 Fed. Cl. at 670. Reasonable costs include the costs of obtaining medical records and
expert time incurred while working on a case. Fester, 2013 WL 5367670, at *16. When petitioners
fail to carry their burden, such as by not providing appropriate documentation to substantiate a
requested cost, special masters have refrained from awarding compensation. See, e.g., Gardner-
Cook v. Sec’y of Health & Human Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec.
Mstr. June 30, 2005).
The requested costs can be sorted into three different categories—costs to obtain medical
records, costs associated with travel to and from the January 11, 2018 entitlement hearing in
Washington, D.C., and expert costs. The first two categories shall be awarded in full, for a total of
$4,437.73. The latter category requires further scrutiny. Petitioner requests a total of $12,250.00
for Dr. Fraunfelder, representing 17.5 hours of work billed at $500.00 per hour, and 14 hours of
travel time billed at $250.00 per hour. I find that the amount of time billed is reasonable, especially
in light of the fact that Dr. Fraunfelder not only prepared two expert reports but also testified at
the entitlement hearing.
Requested expert hourly rates herein are another matter. I have recently reduced Dr.
Fraunfelder’s hourly rate to $400.00. See Derenzo, 2018 WL 1125231, at *3 (Fed. Cl. Spec. Mstr.
Jan. 9, 2018). In Derenzo, I noted that while Dr. Fraunfelder is an undoubtedly qualified expert,
that expertise must be balanced with his lack of experience testifying in the Vaccine Program. Id.The decision in Derenzo was filed less than five months ago, and Petitioner has not provided any
information to suggest that Dr. Fruanfelder has participated in addition Vaccine Program cases
during this time such that he may be entitled to a rate of $500.00 per hour. See, e.g., Rosof v. Sec'y
of Health & Human Servs., No. 14–766, 2017 WL 1649802, at *4 (Fed. Cl. Spec. Mstr. Mar. 31,
2017) (noting that awarding $500 per hour for an expert in the Program is very rare). Accordingly,
I will reduce Dr. Fraunfelder’s hourly rate to $400.00, commensurate with the rates of other
similarly-experienced experts. This amounts to a total award of $9,800.00 (representing a
reduction of $2,450.00). Petitioner is therefore entitled to $14,237.73 for the totality of costs.
CONCLUSION
5
Accordingly, in the exercise of the discretion afforded to me in determining the propriety
of interim fees awards, and based on the foregoing, I GRANT IN PART Petitioner’s Motion for
Interim Attorneys’ Fees, as follows:
Amount Requested Reduction Total Awarded
Attorneys’ Fees $45,039.45 $0 $45,039.45
Attorneys’ Costs $16,687.73 $2,450.00 $14,237.73
Grand Total: $59,277.18
I therefore award a total of $59,277.18 in interim fees and costs as a lump sum in the form
of a check jointly payable to Petitioner and Petitioner’s counsel, Mr. Ronald C. Homer,
representing attorneys’ fees in the amount of $45,039.45, plus costs in the amount of $14,237.73.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court SHALL ENTER JUDGMENT in accordance with the terms of this decision.3
IT IS SO ORDERED.
s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
6